Custom
After the enactment of the constitutio Antoniniana (212 AD) by which Roman citizenship was extended to all the free inhabitants of the empire, in theory Roman law became the common law of the realm and, as a result, the earlier distinction between ius civile and ius gentium faded away.
This enactment extended the notion of what was considered 'Roman' to cover a multitude of ethnically and locally divergent cultures and legal systems in different stages of development. In actual fact, however, local systems of law did not disappear but continued to apply in some measure in the form of custom.[1149] [1150] During the Dominate the role of custom as a supplementary source of law was further recognised. According to the jurist Hermogenian, an established customary norm had the same force as written law because it was based upon the tacit consent of the citizens ^tacita civium conventio’).[1151] The same principle was endorsed by imperial legislation, on the condition that a customary norm did not contradict a written law and had a logical basis.[1152] The centralisation of law-making activity seems to have contributed, in an indirect way, to the enlargement of the role of custom as a source of law during this period. As all laws now emanated immediately from the emperor and his bureaucracy, who were often unfamiliar with conditions obtaining in the provinces, many imperial enactments were at variance with local practices and conceptions of justice. Changing local customs that were generally and regularly observed was not easy and implementing imperial legislation in the provinces sometimes proved to be an impossible task.[1153]The growing influence of custom is not unrelated to the so-called 'vulgarisation' of Roman law that marks the development of the law during the later imperial era. We saw earlier that, prior to the promulgation of the constitutio Antoniniana, communities in the provinces were permitted to carry on observing their own systems of law insofar as these were not incompatible with the Roman rule.
When the Roman citizenship was extended to all the inhabitants of the empire, provincial communities were required to adopt and apply a system of law whose rules and procedures were largely alien to them. As the inhabitants of these communities were often reluctant to abandon the norms by which they had been governed in the past, Roman law was in the course of time infiltrated by elements of local systems and many of the traditional institutions of Roman law were transformed or fell into abeyance. At the same time, local conceptions of justice and legal practices underwent a considerable degree of change under the influence of Roman law. As a result, the law which in fact applied in the provinces was an amalgam of simplified Roman law and local custom, varying from area to area, which shared little of the sophistication of the Roman law of the classical period. Elements of this 'vulgarised' Roman law, or 'Romanised' customary law (vulgarrechtf are clearly visible in imperial constitutions, legal codes and documents of the post-classical period.[1154]
More on the topic Custom:
- B. LEGISLATION AND CUSTOM
- Custom
- Custom
- The Role of Custom
- CIVIL LAW AND CUSTOM
- Custom and the Rise of ‘Vulgar Law'
- CHAPTER VII Statute and Custom
- Custom and the Growth of ‘lang=EN-US>Vulgar Law'
- Sources of law in the archaic period
- ‘VETUS MOS': CUSTOMARY LAW BEFORE THE SC SILANIANUM
- The Influence of Customary Law
- Evaluation
- The Legis Actio Procedure
- COURT PRACTICE AS A SOURCE OF LAW